The Justice Department has enacted new regulations that allow additional methods to be used for federal executions, including shooting and electrocution.
The new ruling, due to be posted on the federal register on Friday, comes as the government rushes to execute five more prisoners before President Trump’s term ends. It is part of a flurry of movements and regulatory processes before he leaves office.
In contrast to some decisions made at the last hour, the practical effect of the rule remains unclear. The Justice Department has not indicated that it plans to execute inmates by any means other than lethal injections. This is the only method of execution the federal government has used in decades. Although lethal injection has come under increasing legal attack, the Supreme Court has already dismissed recent challenges from inmates on federal death row. And President-elect Joseph R. Biden Jr., who can overturn the rule, has signaled his opposition to the federal death penalty.
Last week, the Justice Department announced that three more inmates on federal death row would be executed. If the government does so, along with two other executions already planned, it will have killed 13 prisoners since July in what marks one of the deadliest periods in the history of the death penalty since at least 1927, according to the federal agency.
The rule, previously reported by ProPublica“Provides that the federal government may carry out executions by lethal injection” or in any other manner required by the law of the state in which the sentence was imposed or which was designated by a court under applicable law Implementation of the death sentence. It will go into effect 30 days after its scheduled release on Friday before some of the executions are due to take place.
All states that use the death penalty allow execution by lethal injection under the rule. Some also approve other means. For example, Alabama allows the prisoner to choose electrocution or nitrogen hypoxia (a lethal dose of gas) rather than lethal injection. ONE Law signed by the governor of Utah in 2015 states that a firing squad should be used to execute an inmate if no substances are available for lethal injection at the scheduled time.
States are already struggling to get drugs suitable for their lethal injection protocols. Several years ago, reports of high-profile botched executions involving prisoners who were reportedly gasping or writhing in pain led to a re-examination of the death penalty. After an instance in Oklahoma, President Barack Obama directed his attorney general to review the use of the death penalty in the United States.
The federal executions, carried out since the end of the Trump administration’s nearly two-decade hiatus, have been solely through lethal injections. The government protocol uses a single chemical, pentobarbital, which the Supreme Court cleared the way for in June.
The rule recently set by the Trump administration concerns how the federal government must comply with state execution protocols. The federal law on the death penalty requires that executions be carried out “in the manner prescribed by the law of the state in which the sentence is imposed”.
When the Justice Department filed a first version of the rule, published in August, it found that one day a state could potentially require executions to be carried out by means other than lethal injections. The proposed rule said that it would prevent potential challenges from prisoners in their executions, as federal regulations did not specifically allow execution by any means other than lethal injection.
As a rule, agencies should at least allocate 60 days for public comments. The Trump administration only gave 30 days for the proposed rule.
Steve Vladeck, a law professor at the University of Texas, noted that Mr Biden could reverse the rule, but said it was a “symbolic” and “deeply practical” step the department took in carrying out their five scheduled executions.
“It’s a pretty cruel way to go out,” he said. “This is basically the attorney general doubling up to execute as many federal prisoners as possible before his term is up.”
He also highlighted the recent legal hurdles the Justice Department has faced in capital punishment disputes. Before the execution of a federal inmate, Orlando Cordia Hall, last week, on the U.S. District of Columbia Circuit Circuit Court of Appeals governs that the department’s fatal injection protocol could violate federal law on food, drugs and cosmetics. This law requires a prescription for the execution drug pentobarbital. However, the court still refused to issue an injunction.
In an effort to revive the death penalty under the Trump administration, the Justice Department turned down the use of the three-drug cocktail it once used and instead implemented a single-drug protocol, pentobarbital.
The Announcements from The Department of Justice for the five scheduled executions announced that four prisoners would be executed by lethal injection at the federal prison in Terre Haute, Indiana. The Department did not specify the type of execution for a prisoner, Dustin John Higgs, who was convicted of the kidnapping and murder of three women. An official from the Justice Department, who spoke on condition of anonymity, also did not comment on his method of execution.
Ruth Friedman, the director of the Federal Capital Habeas project who represented the first man to be executed by the Trump administration, described the rule as a “great arrogation of power”. She criticized the department’s decision to evade justice. The rule removed the requirement that a government attorney be required to provide the court, among other things, with the date and place of execution, part of a provision that the department deemed redundant.
Ms. Friedman also said the government’s intention to execute prisoners so close to a new government that signaled opposition to the death penalty was more worrying than the rule.
The Justice Department official defended the decision, saying the regulations were intended to bring federal penalties into line with the law.
Robert Dunham, the executive director of the Death Penalty Information Center, expected that the new rule would most likely lead to less and less complicated legal challenges for executions, but that it would quickly become irrelevant under an administration that does not want to execute inmates.
“It tells us more about how much the government wants to kill prisoners than about any real need for correction,” he said.